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First Amendment Arguments Overshadow Sterling Espionage Case


Former CIA employee Jeffrey Sterling goes to trial next week on charges that he violated his oath and leaked classified information to New York Times reporter James Risen. Up to this point, Sterling's legal plight had been largely overshadowed by Risen's First Amendment arguments. But there's news on that score. It now seems that Risen will not be called to testify as a witness by the prosecution. NPR justice correspondent Carrie Johnson is here with us in the studio to talk about the case. And first, who is Jeffrey Sterling, and what do prosecutors say he did to broke the law?

CARRIE JOHNSON, BYLINE: Robert, Jeffrey Sterling is a former CIA worker who once sued the agency for employment discrimination, and prosecutors say he leaked information on an operation targeting Iran's nuclear capabilities and some other classified material to Jim Risen. Risen's a reporter at the Times, and he put some of that material in his book, called "State Of War." That book wound up embarrassing the CIA because it describes some of the operations it undertook as ham-fisted. And now Jeff Sterling faces several charges of unauthorized disclosure of defense information. The law in question here is the 1917 Espionage Act. Sterling could spend dozens and dozens of years, if he's convicted, behind bars.

SIEGEL: This case has been kicking around the courts for years. Why is it taking so long?

JOHNSON: Largely because of the legal fight over a prosecutor's decision to subpoena testimony from Jim Risen, the New York Times reporter. That decision was initially approved by the Justice Department in the Bush years, and then President Obama's administration reapproved it. The fight went all the way up to the Fourth Circuit Court of Appeals, which sided with Justice. And the the Supreme Court refused to hear the dispute. That took years. Groups, including Reporters Committee for Freedom of the Press, have backed Risen all the way.

SIEGEL: They've been saying that he should not be compelled to testify against the source. But now comes today's news. There's word that the prosecutors have decided not to call James Risen.

JOHNSON: Robert, Politico is reporting the Justice Department decided not to force Risen to testify. Earlier this week, in front of the judge but not the jury, they did a test run of his testimony. And it went pretty rocky, Robert. Risen only very reluctantly confirmed basic details about the case, and he said explicitly on the stand he did not want to add to the mosaic prosecutors may be trying to build to convict Jeff Sterling. That said, Robert, Risen still could be called by defense lawyers for Jeff Sterling in the course of the trial.

SIEGEL: There is a wider significance here than just this one case - a question of press freedom and the First Amendment.

JOHNSON: Yeah, the appeals court - the Federal Appeals Court found no reporter's privilege here. And President Obama has pursued more of these criminal leak indictments than any of his predecessors. But the White House says it supports some kind of media shield law to give reporters some protection and their sources. Nothing's got the approval of Congress so far, though, because it's really hard to define in this age of blogging and tweeting who counts as a reporter.

In the meantime, the Justice Department has slightly adjusted its guidelines. It now requires higher levels of approval at DOJ before subpoenaing reporters.

SIEGEL: Is there any chance that there could be a plea deal in this case in the next few days?

JOHNSON: Never say never, but I'm told both sides are light-years apart. The CIA and Justice take information leaks of this kind of status very seriously. And for Jeff Sterling, this has become a referendum on his integrity and a manner of principle. He's preparing to argue someone else - maybe someone on Capitol Hill with access to this information - was actually responsible for the leak.

SIEGEL: Thank you, Carrie.

JOHNSON: You're welcome.

SIEGEL: That's NPR justice correspondent Carrie Johnson. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Corrected: January 11, 2015 at 9:00 PM PST
In a previous version of this story, we inaccurately characterized the government allegations about what material Jeffrey Sterling may have leaked. In fact, the prosecution argues Sterling told a reporter about a botched operation to target Iran's nuclear capabilities, as we accurately reported in later versions. Additionally, the original version of the transcript contained that same error.
Carrie Johnson is a justice correspondent for the Washington Desk.